Teacher’s Improper Sexual Contact with Student Does Not Need to be In-Person

In Crumpton v. State, the Georgia Court of Appeals reversed the trial court and held that an indictment properly charged a teacher with improper sexual contact with a student for sending the student a sexually explicit picture. The Court held that the statute does not require the sexual contact between the teacher and student to be in-person.

Background

The indictment in question charged the teacher with sending an Instagram message to a student that contained “a photograph depicting the accused engaging in a lewd exhibition of the genitals.”

Under Georgia law, the statute that criminalizes sexual contact between teachers and students is O.C.G.A. § 16-6-5.1 which is entitled, Improper Sexual Contact by Employee. Specifically, the statute prohibits any employee of a school from engaging in “sexually explicit conduct” with any student enrolled at the same school.

The definition of sexually explicit conduct (contained in O.C.G.A. § 16-12-100) includes many types of sexual acts and also includes the “lewd exhibition of the genitals or pubic area of any person.”

The Teacher’s Demurrer to the Indictment

The teacher filed a general demurrer to the indictment which is essentially a motion that contends that the indictment fails to properly allege a crime. The standard for granting a general demurrer is if the accused person can admit all of the facts contained in the indictment and still not be guilty of any crime.

The defense argued that the title of the statute itself demonstrates that the offense must involve sexual contact and, thus, be in-person. Therefore, the teacher could admit to the sending of the sexually explicit picture to the student and not be in violation of the statute.

The trial court agreed and held that the statute “did not…criminalize the electronic distribution of nude photographs to a minor…[because the] plain meaning of the statute only includes in-person sexual acts.”

The trial court granted the demurrer and dismissed the indictment. The State then appealed.

Court of Appeals Analysis

The Court of Appeals began by pointing out that despite the statute’s title, “improper sexual contact” is technically not an element of the offense. The offense that was alleged in this case reads as follows:

[A person] commits the offense of improper sexual contact by employee or agent in the first degree when such employee or agent knowingly engages in sexually explicit conduct with another person…(1) Enrolled as a student at a school of which he or she is an employee or agent.

Therefore, to commit the offense, the teacher must engage, not in sexual contact, but in sexually explicit conduct, with the student. This was an important distinction to the Court because the trial court’s ruling appeared to be focused on the statute’s title.

Once the Court of Appeals determined that actual contact was not required, it then determined that there was nothing in the language of the statue that limited the offense to acts committed when the teacher and student were in each other’s physical presence.

The Court did note at the end of its opinion that the wording of the statute, “combined with its corresponding definitions of “sexually explicit conduct” in O.C.G.A. § 16-12-100, are, without question, difficult to interpret.” It encouraged the legislature to address these difficulties and perhaps consolidate the statute’s definitions in order to minimize confusion for future cases.

Nevertheless, the Court concluded that despite these difficulties, the statute was not ambiguous and the legislature’s intent to criminalize the teacher’s conduct in this case was evident.

As a result, the Court reversed the trial court’s granting of the demurrer, reinstated the indictment, and remanded the case back to the trial court for further prosecution.